Passionate about IP! Since June 2003 the IPKat has covered copyright, patent, trade mark, info-tech, privacy and confidentiality issues from a mainly UK and European perspective. The team is Neil J. Wilkof, Annsley Merelle Ward, Nicola Searle, Eleonora Rosati, and Merpel, with contributions from Mark Schweizer. Read, post comments and participate! E-mail the Kats here

The team is joined by Guest Kats Rosie Burbidge, Stephen Jones, Mathilde Pavis, and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Hayleigh Bosher, Tian Lu and Cecilia Sbrolli.

The stated objective of this consultation is to see how to ensure that
"the EU copyright regulatory framework stays fit for purpose[this is one of those terms of phrase which are consistently and -
quite frankly - unoriginally employed in copyright reform debates these days] everywhere in the
digital environment to support creation and innovation, tap the full potential
of the Single Market, foster growth and investment in our economy and
promote cultural diversity."

This initiative is part of the Commission's two-pronged approach to
review copyright[the other being the recentlyconcluded "Licences for
Europe"],
as spelled out in last years'Communication onContent in the Digital Single Market.

But what is the
Commission seeking stakeholders' feedback on? In a nutshell: everything, but in
particular the following.

Why is it not possible to access many online content
services from anywhere in Europe?

Yep, this is the
first question. Although Merpel wonders whether its preeminence may be due
to personal concerns of those many expats living and working in Brussels, this
issue goes well beyond the sole ability of watching MasterChef Italia [one of this Kat's favourite TV shows] outside Italy. It
actually touches upon segmentation of the market for licences and - above all -
territoriality of copyright laws. With regard to the latter: should this
practical [rather than
theoretical] feature of
copyright be superseded in what we want it to be an EU "single"
market? [to this effect, see last question below]

Why can't you watch MasterChef Italia outside Italy?

Is there a need for more clarity as regards the scope
of what needs to be authorised (or not) in digital transmissions?

More in detail:

Should the right of making available to the
public be clarified further, in particular with regard to what it covers
and where the act of making available takes place? This is a question which - among other
things - touches upon intention to target approach vs accessibility
criterion, as recently discussed by the Court of Justice of the European
Union (CJEU) in Case C-170/12 Pinckney[see here, here, here and here].

What happens when two exclusive rights are
involved in a single act of exploitation? Is this a
problem?

Should hyperlinking and browsing fall
within the scope of copyright protection? Again, this is another question which calls into consideration
references for a preliminary ruling (still pending) before the CJEU: Case C-466/12 Svensson[here],
Case C-279/13 C More
Entertainment[here],
and C-348/13 BestWater[here]
for hyperlinking, and Case C-360/13Meltwater[here]
for internet browsing.

Digital exhaustion:
should you own your downloads? As IPKat readers may recall, this is an
issue which is particularly close to the mind and heart of this Kat,
especially following last year's CJEU decision in Case C-128/11UsedSoft[here,here,here,here,here,here ...]

Registration of works and reinstatement of some formalities

Although existing
international treaties [see Article 5(2) of the Berne Convention] prohibit formalities as a condition for
the protection and exercise of rights, the Commission notes that this
prohibition is not absolute, and the EU has already taken steps to provide for some sort of formalities, the most significant example being Article 3(6) of the Orphan Works Directive.

There are times when reinstating some formalities might actually help you

Earlier this year, this Kat was very much intrigued by the proposal advanced by US Register of Copyrights
Maria Pallante in the context of US copyright reform debate: since Berne imposes a
minimum term of 50 years post mortem
auctoris, and US law has a term of 70 years, Berne no-formality rule would
not apply to the final 20 years of protection, thus allowing the US to require
rights owners to assert their continued interest in exploiting the work. Rights owners could be thus required to register
with the Copyright Office, otherwise the work would enter the public domain.

By the way, for
those interested in formalities, here are two books well-worth exploring: the
fascinating must-read How to Fix Copyright by William Patry and
(specifically on the history and legal developments of formalities) Formalities in Copyright
Law by Stef van
Gompel.

How to improve the use and interoperability of
identifiers?

This would be
mainly to facilitate licensing, although it may be also a tool to reduce the
orphan works problem.

Term of protection: is it appropriate?

This Kat suspects
that most answers to this question will be in the negative, but how realistic is
it to think of harmonising copyright duration downwards?

Limitations and exceptions

Can a greater
degree of flexibility be introduced in the EU and Member States regulatory
framework while ensuring the required legal certainty, including for the
functioning of the Single Market, and respecting the EU's international
obligations?

More in detail, exceptions and limitations to be considered are those for library and archives
(including mass digitisation), teaching, research, people with a disability,
text and data mining [which the
Commission has already attempted to approach in the context of "Licences
for Europe"], user-generated
content, private copying, reprography and levies.

Fair remuneration for authors and performers

This is an area
that has been traditionally left to Member States to regulate, but should the
EU intervene?

"I dream of an EU copyright title"

(Civil) enforcement, fundamental rights and
intermediaries' liability

With particular
regard to intermediaries: is the current
legal framework clear enough to allow for sufficient involvement of
intermediaries in inhibiting online copyright infringements with a commercial
purpose?

Finally: should the EU adopt an EU-wide copyright
title?

This Kat thinks
that this would be the best solution to complement what is already a single
market for copyright-related products and services ...

Overall, Merpel is a huge fan of public consultations.
However, she notes that in some significant instances the questions posed draw upon
cases that have been or will be decided shortly by the CJEU, which - in doing
so - has interpreted/will interpret existing EU and international legislation. While in many cases the
Consultation asks you to respond 'yes' or 'no' as if the Commission could
decide to do either way, Merpel suspects that it may not be that easy to think that
any winning option could actually translate to workable legislative
initiatives ...

2 comments:

Peter
said...

I find the concept of a public consultation on future laws interesting. I wonder whether the subsequent decisions by the EU will be influenced by the strength of arguments or by the numbers of people wanting something. The latter is important in democracies, but of course this is not a referendum. I am also a little but envious that the UK does not make laws using such public consultations.

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